3600 South Yosemite Street, Suite 828 Denver, CO MEMORANDUM

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1 3600 South Yosemite Street, Suite 828 Denver, CO MEMORANDUM To: From: Re: Firm Client Peter E. Muccio, Esq. Tenant Deaths Firm clients frequently inquire as to the procedures that should be followed in the event of a tenant death. This memorandum and accompanying indemnity agreement address those issues. 1. Contact Authorities. WHAT TO DO IN THE EVENT OF A TENANT DEATH Call the police or other law enforcement agency that has jurisdiction in the area where your property is located. The police will most likely contact the appropriate coroner but in the event they do not, you should. 2. Contact Tenant's Emergency Contacts/Next of Kin. This should only be done after you have contacted the police and they have arrived. In dealing with these types of unfortunate episodes, please keep in mind the most common potential problems. Relatives of the deceased may accuse management personnel of wrongfully removing property. Relatives of the deceased may accuse other relatives or persons of wrongful removing property. It is important that the scene not be disturbed prior to the time the police arrive and have an opportunity to investigate. Most tenants pass on due to natural causes. However, this is for the police and the coroner to determine. Their jobs will be much easier if the scene has been disturbed as little as possible and other people have not entered the unit. 3. Allowing Access to the Unit After Law Enforcement is Finished. Do not allow access to the unit to anyone that does not have proper authority. Proper authority would be the police, the coroner, or the public administrator. If for any reason, you have to re-enter the deceased's unit prior to the time other persons take control over and remove the deceased's property, you should never enter alone. Enter with two or more management personnel. Each and every entry should be carefully logged in the tenant's file including date of entry, purpose, and who entered. 4. The Public Administrators Office & Coroners

2 Some Counties in Colorado have a Public Administrator (PA). A PA is appointed by the probate court. The PA may get involved to secure a residence and personal property, in the event that an heir or personal representative is not immediately available. Understand that a PA is not paid by the state they are private individuals who serve based on court appointment. If next of kin are found and will be administering the estate, the public administrator may notify the landlord that the next of kin will be accessing the property. If there are substantial assets, the PA may even pay an additional month s rent to store the assets prior to sale. This does not often happen. For example, there was one tenant who had over four thousand collectible model trains. The public administrator paid an additional month s rent to store the items prior to auction. If there are few assets and no next of kin, then the public administrator will notify the landlord, and it will be up to the landlord to evict the unit to recover the premises. Throughout the process of dealing with a tenant s death you may be in contact with the public administrator. Every public administrator strongly encourages you to contact their office if you have any questions while dealing with a tenant s death, as this may be necessary to protect the former resident s estate. Adams Public Administrator Arapahoe Public Administrator Denver Public Administrator Jefferson Public Administrator Not all of the counties have public administrators. In the counties below it is the Coroner s office that will take the lead in dealing with the public on issues of a tenant s death. Boulder Coroner Douglas Coroner El Paso Coroner Dealing with People Who Show Up. Frequently, after a tenant dies, relatives or others who are not listed as an emergency contact pop up out of the woodwork. While under the circumstances, it is important to be sympathetic, you cannot let the relative have access to the unit until the relative proves their identity and authority to take control of the deceased s property. You should contact the public administrator, if your county has one, and make sure that the relative is authorized to access the property. Although, this may offend some, you 2

3 should explain that it is necessary to prevent people who don't have legitimate claims from taking the tenant's property. Occasionally, a relative will show up with a small estate affidavit claiming they are entitled to the property of the deceased tenant. There is a procedure under Colorado law for dealing with small estates that allows an heir to take control over the deceased s possessions. If this occurs, be sure to contact the firm, and we can analyze the affidavit to see if it complies with Colorado law. If the affidavit complies with the law, then tenant s property can be released to the holder of the affidavit. The affidavit has the same effect as the indemnity agreement. It is important to remember that when speaking to friends or relatives in these situations, you should make every effort to conduct such conversations in the presence of at least one other property agent or employee. All phone calls should be immediately noted to the file in sufficient detail to be recalled later if need arises. Most important of all, do not allow access to the unit to anyone until you have cleared their access with the public administrator or been provided with the appropriate documentation, and they have signed the indemnity agreement. If you allow access without having them sign the agreement, they might remove property and refuse to sign the agreement. Additionally, if you release a deceased residents property to an individual incorrectly, there is possible liability. While the indemnity agreement provides the landlord the ability to try and hold the individual who signed the agreement responsible, it is still prudent to check with the PA before releasing the property. The indemnity agreement should be signed at the property and be sure to make a copy of the ID of the person accessing the property. Do not provide this person with a key just provide them with access. 6. Dealing with the Property if No Next of Kin is Located. If you are unable to reach the tenant's emergency contact(s), make reasonable efforts to locate relatives or next of kin. What steps to take depends on the facts and circumstances of each case. The most conservative step, to protect management and ownership of the property, is to initiate an eviction action once there is a default of the lease. Even if there is an abandonment clause in your lease, that abandonment clause offers little protection from a claim that could be raised by an heir that may appear later. Although, the lease may give you the right to eventually remove the tenant's property, this is not the recommended course of action, but if you do have this lease language you have this option. In this event, some record should be made of the tenant's property for the file, i.e. written inventory or photographic inventory. People can show up after management has disposed of the property because management wasn't initially able to contact anyone. In this event, the record of the actual property is very important to limit potential damages in any lawsuit. Our office recommends that the landlord proceed with an eviction in the event that there is not next of kin located, simply to limit the landlord s liability. 7. Handling the Security Deposit. 3

4 The return of the security deposit would be payable to the resident just as it would in the event of an eviction. Mail the security deposit to the last known address, which would be the property address. Assuming that the mail is not forwarded to the next of kin, if there is money that is due to the deceased resident then that money would need to be returned to the state as abandoned property. 4

5 INDEMNITY AGREEMENT WHEREAS, ; ("Tenant") died on or about WHEREAS, Tenant resided at a property managed by Landlord Property Management, Inc. ("Landlord"), at the address of ("Tenant's Apartment"); WHEREAS, (person claiming property hereinafter "Claimant") has represented to Landlord that he/she is legally entitled to remove and otherwise take control over all of Tenant's property of every nature and kind from Tenant's Apartment (hereinafter "the property"); and WHEREAS Landlord desires to assist Claimant in the prompt resolution of the Tenant's affairs; In consideration of the following mutual covenants, promises, representations, warranties, and agreements contained herein; and for good and other valuable consideration, the receipt and sufficiency of which Landlord and Claimant hereby expressly acknowledge, Landlord and Claimant agree as follows: 1. Claimant represents to Landlord that he/she is entitled to remove and to otherwise control and dispose of the property. Claimant also represents that no other persons or firms are legally entitled to or have any rights in the property to the best of Claimant's knowledge, information, and belief. Landlord agrees to allow Claimant access to Tenant's Apartment. Claimant agrees to remove the property from Tenant's Apartment. Claimant understands and agrees that Landlord will dispose of all property not removed from Tenant's Apartment by Claimant in accordance with Landlord's lease agreement with Tenant. 2. Claimant agrees to hold Landlord, its officers, directors, partners, general partners, joint venturers, employees, agents, independent contractors, representatives, attorneys, firms, corporations, successors and assigns (collectively "Landlord"), harmless from any claim whatsoever from any person whatsoever based on Landlord allowing Claimant to remove the property. In the event of any claims whatsoever by any person whatsoever based on Claimant removing the property, Claimant agrees to indemnify Landlord against all such claims, damages, cost, and expenses, including reasonable attorneys' fees and costs incurred by Landlord. CLAIMANT: LANDLORD: DATE: DATE: Title Print Name Print Name Rev. 02/18/14